J-S61030-14 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

IN RE: ADOPTION OF E.J.S. IN THE SUPERIOR COURT OF

PENNSYLVANIA 

APPEAL OF: J.A.S. 

 No. 1035 WDA 2014 

Appeal from the Order of May 15, 2014 

In the Court of Common Pleas of Cambria County 

Orphans’ Court at No. 2013 – 1147 IVT 

BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J.* 

MEMORANDUM BY WECHT, J.: FILED NOVEMBER 7, 2014 

 In this appeal, J.A.S. (“Father”), appeals the May 15, 2014 order, in 

which the trial court involuntarily terminated his parental rights to his son, 

E.J.S. (“Child”), born in October of 2004. We affirm. 

 The record supports the following summary of the facts of this case. 

Child originally lived with Father and S.S. (“Mother”) in Ebensburg, 

Pennsylvania. Notes of Testimony (“N.T.”), 5/14/2014, at 39. Mother, 

Father, and Child then lived in Virginia for approximately six months before 

they returned to Ebensburg. Id. at 39-40. Due to Father’s work, Mother, 

Father, and Child then moved to Pittsburgh for approximately six months. 

Id. at 41-42. In either 2005 or 2006, Father left Child with Mother in 

Pittsburgh and moved back to Cambria County. Id. at 43. Mother and 

Father had agreed to a visitation schedule in which Father would see Child 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 
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every weekend. However, Mother never returned to pick up Child after the 

second weekend. Id. at 43-44. After that, Child lived with Father and his 

paternal grandparents. Id. at 45. By 2009, Father lived in Nanty Glo, 

Pennsylvania, while Child continued to live with his paternal grandparents 

until May 2011. Id. at 7, 47. 

On May 6, 2011, Child’s paternal grandfather (“Paternal Grandfather”) 

died as a result of a brain aneurysm. Id. Child’s paternal grandmother 

(“Paternal Grandmother”) had a history of health issues and was unable to 

care for Child. Id. On June 22, 2011, the trial court entered an emergency 

custody order, with Paternal Grandmother’s consent, granting Child’s 

maternal grandfather (“Maternal Grandfather”) primary physical custody and 

sole legal custody. Id. Paternal Grandmother was granted visitation, 

including one week during the summer, with Child. 

 Maternal Grandfather had not seen Father since Paternal Grandfather’s 

funeral in May 2011. Id. at 11. Maternal Grandfather also stated that, 

since Child started living with him, neither Maternal Grandfather nor Child 

had had any contact with Father, including letters, cards, presents, or phone 

calls. Id. at 8. 

 On December 13, 2013, Maternal Grandfather petitioned to terminate 

involuntarily Mother’s and Father’s parental rights, pursuant to 23 Pa.C.S.A. 

§ 2511(a)(1),(2), and (b). On March 28, 2014, the trial court held an 

involuntary termination of parental rights hearing. At the request of Father, 

the trial court granted a continuance as to the determination of Father’s 
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parental rights because Father did not have counsel. On May 14, 2014, a 

second hearing was held. At the conclusion of that hearing, Father’s 

parental rights were terminated pursuant to 23 Pa.C.S.A. § 2511(a)(1),(2), 

and (b). On June 16, 2014, Father filed his notice of appeal and concise 

statement of errors complained of on appeal.1

 Father presents the following question for our review: 

Whether the trial court either abused its discretion or committed 

an error of law when it granted the Petition for Involuntary 

Termination of Parental Rights, thereby terminating the parental 

rights of [J.A.S.]? 

Father’s Brief at 2. 

 In reviewing an appeal from the termination of parental rights, we 

review the order in accordance with the following standard: 

[A]ppellate courts must apply an abuse of discretion standard 

when considering a trial court’s determination of a petition for 

termination of parental rights. As in dependency cases, our 

standard of review requires an appellate court to accept the 

findings of fact and credibility determinations of the trial court if 

they are supported by the record. In re: R.J.T., 9 A.3d 1179, 

1190 (Pa. 2010). If the factual findings are supported, appellate 

courts review to determine if the trial court made an error of law 

or abused its discretion. Id.; In re: R.I.S., 36 A.3d 567, 572 

(Pa. 2011) (plurality opinion). As has been often stated, an 

abuse of discretion does not result merely because the reviewing 

____________________________________________ 

1

 While the order at issue was entered on the docket on May 15, 2014, 

the docket indicates that notice was not provided to the parties until May 20, 

2014. Because the time in which to appeal does not begin to run until notice 

is provided, see In re L.M., 923 A.2d 505, 508-09 (Pa. Super. 2007), 

Father’s notice of appeal was filed timely. 
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court might have reached a different conclusion. Id. Instead, a 

decision may be reversed for an abuse of discretion only upon 

demonstration of manifest unreasonableness, partiality, 

prejudice, bias, or ill-will. Id.

As we discussed in R.J.T., there are clear reasons for applying 

an abuse of discretion standard of review in these cases. We 

observed that, unlike trial courts, appellate courts are not 

equipped to make the fact-specific determinations on a cold 

record, where the trial judges are observing the parties during 

the relevant hearing and often presiding over numerous other 

hearings regarding the child and parents. R.J.T., 9 A.3d at 

1190. Therefore, even where the facts could support an 

opposite result, as is often the case in dependency and 

termination cases, an appellate court must resist the urge to 

second guess the trial court and impose its own credibility 

determinations and judgment; instead we must defer to the trial 

judges so long as the factual findings are supported by the 

record and the court’s legal conclusions are not the result of an 

error of law or an abuse of discretion. In re Adoption of 

Atencio, 650 A.2d 1064, 1066 (Pa. 1994). 

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (citations 

modified; some citations omitted). 

 Requests to have a natural parent’s rights terminated are governed by 

23 Pa.C.S.A. § 2511, which provides, in pertinent part: 

§ 2511. Grounds for involuntary termination 

(a) General rule.—The rights of a parent in regard to a child 

may be terminated after a petition filed on any of the following 

grounds: 

* * * 

(2) The repeated and continued incapacity, abuse, neglect 

or refusal of the parent has caused the child to be without 

essential parental care, control or subsistence necessary 

for his physical or mental well-being and the conditions 

and causes of the incapacity, abuse, neglect or refusal 

cannot or will not be remedied by the parent. 
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* * * 

(b) Other considerations.—The court in terminating the rights 

of a parent shall give primary consideration to the

developmental, physical, and emotional needs and welfare of the 

child. The rights of a parent shall not be terminated solely on 

the basis of environmental factors such as inadequate housing, 

furnishings, income, clothing and medical care if found to be 

beyond the control of the parent. With respect to any petition 

filed pursuant to subsection (a)(1), (6) or (8), the court shall not 

consider any efforts by the parent to remedy the conditions 

described therein which are first initiated subsequent to the 

giving of notice of the filing of the petition. 

23 Pa.C.S.A. § 2511(a)(2), (b). 

 In order to affirm the termination of parental rights, this Court need 

only agree that grounds to do so pursuant to any one subsection of section 

2511(a) have been established. See In re B.L.W., 843 A.2d 380, 384 (Pa. 

Super. 2004) (en banc). Therefore, although the trial court found grounds 

to terminate pursuant to multiple subsections, we will only address section 

2511(a)(2). We need not address section (b) because Father has not 

challenged the trial court’s finding that section (b) was satisfied. 

 It is well-settled that a party seeking termination of a parent’s rights 

bears the burden of proving the grounds by clear and convincing evidence, a 

standard that requires evidence that is “so clear, direct, weighty, and 

convincing as to enable the trier of fact to come to a clear conviction, 

without hesitance, of the truth of the precise facts in issue.” In re T.F., 847 

A.2d 738, 742 (Pa. Super. 2004) (citation omitted). 

 To terminate parental rights pursuant to section 2511(a)(2), the 

following three conditions must be met: “(1) repeated and continued 
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incapacity, abuse, neglect or refusal must be shown; (2) such incapacity, 

abuse, neglect or refusal must be shown to have caused the child to be 

without essential parental care, control or subsistence; and (3) it must be 

shown that the causes of the incapacity, abuse, neglect or refusal cannot or 

will not be remedied.” In re E.A.P., 944 A.2d 79, 82 (Pa. Super. 2008) 

(citations omitted). 

 Our Supreme Court has held that incarceration cannot be used as a 

ground for involuntarily terminated paternal rights; rather, it may only be 

used as one factor in the overall analysis. 

[A] parent’s absence and/or failure to support due to 

incarceration is not conclusive on the issue of abandonment. 

Nevertheless, we are not willing to completely toll a parent’s 

responsibilities during his or her incarceration. Rather, we must 

inquire whether the parent has utilized those resources at his or 

her command while in prison in continuing a close relationship 

with the child. Where the parent does not exercise reasonable 

firmness in declining to yield to obstacles, his other rights may 

be forfeited. 

In re: Adoption of McCray, 331 A.2d 652, 655 (Pa. 1975). More recently, 

the Court held that, 

[I]ncarceration, while not a litmus test for termination, can be 

determinative of the question of whether a parent is capable of 

providing “essential parental care, control, or subsistence” and 

the length of the remaining confinement can be considered as 

highly relevant to whether the “conditions and causes of the . . . 

refusal cannot or will not be remedied by the parent.” 

S.P., 47 A.3d at 830. 
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In the instant case, the three conditions mandated by E.A.P. to 

terminate parental rights have been satisfied. Father has demonstrated a 

refusal to provide Child with essential parental care, control, or subsistence. 

As a result, Child lacks essential parental care, control or subsistence from 

his natural father, and Father’s refusal will not be remedied. Father admits 

that he has spent only three hours with Child over the last three years. N.T. 

at 25. He made attempts to contact Child by visiting Maternal Grandfather’s 

former residence, reaching out to Maternal Grandfather’s nephew, and 

inquiring with Paternal Grandmother. Id. at 29. However, Father claimed 

he was unable to find Child and made no other effort over the last three 

years to attempt to determine the Child’s whereabouts. Additionally, 

Maternal Grandfather attempted to contact Father but could not find him, 

even with Paternal Grandmother’s assistance. Id. at 8. Father took no 

action in court for custody or time with Child. Id. at 30. 

At the time of the second involuntary termination of parental rights 

hearing, Father had been incarcerated in the Cambria County prison for 

nineteen months. However, the record does not indicate that Father used 

any of the resources available to him during his incarceration to attempt to 

contact Child as the Supreme Court contemplated in McCray. Specifically, 

Father did not attempt to send Child any letters, birthday cards, or presents 

for either birthdays or holidays. While Father averred that he did not know 

Maternal Grandfather’s new address, Paternal Grandmother was in contact 

with Child. Father never asked his mother to convey a card or message to 
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Child. Despite the fact that Father stated that he considered sending a 

birthday present or a Christmas present to the Child through Paternal 

Grandmother, Father never actually did so. Id. at 33. 

Child has begun referring to Maternal Grandfather as his father, and 

has even started calling him “Dad.” Id. at 10. Attorney Gary F. Vitko, the 

guardian ad litem appointed by the trial court, interviewed Child, who stated 

that he could not remember what Father looked like. Id. at 58. 

At the time of the involuntary termination of parental rights hearing, 

Father remainded incarcerated in the Cambria County prison and did not 

have a set release date. Id. at 53-55. However, upon his release from jail, 

Father will not have suitable housing for both himself and the Child during 

the short term. Id. at 21. At the time of the hearing, Father also had not 

secured employment. Id. at 22. There is no evidence that indicates that, 

but for Maternal Grandfather initiating these proceedings, Father would have 

taken any interest in providing parental care, control, or subsistence to 

Child. Father’s own testimony indicates that, at best, he made only isolated 

attempts to get in touch with Child. 

Our Supreme Court has stated that a recent showing of interest in a 

child does not negate the lack of interest in a child over an extended period 

of time. Adoption of Baby Boy A v. Catholic Social Services of Diocese 

of Harrisburg, Penna., Inc., 517 A.2d 1244, 1247 (Pa. 1986). Here, 

Father has not demonstrated a consistent effort to become a part of the 
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Child’s life. He has not “exercise[d] reasonable firmness in declining to yield 

to obstacles” in maintaining a relationship with Child. McCray, supra. 

Based upon this analysis, Maternal Grandfather has met his burden of 

demonstrating by clear and convincing evidence that the elements of 

2511(a)(2) have been satisfied. Therefore, the trial court did not abuse its 

discretion in involuntarily terminating Father’s parental rights. 

Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 11/7/2014